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Wednesday, November 21, 2012

Are Political Beliefs Protected by the Human Rights Code?

In the case of Al-Dandachi v. SNC-Lavalin Inc., the employer moved to strike out an employee's claim that his rights under the Human Rights Code were violated, raising a very interesting question.

Al-Dandachi is a Muslim and a Syrian Canadian, and he is apparently a pacifist. He believes very strongly in peace, to the point that he opposes the current armed conflict in Syria, and he said as much in a radio interview. He does not support Assad's rule, but nonetheless his opposition to the armed conflict has been interpreted as support for Assad.

The employer fired him shortly after the radio interview, and Al-Dandachi believes that it is a consequence of his statements during the radio interview. Al-Dandachi claims not only that this constitutes wrongful dismissal, but also a violation of the Human Rights Code. His argument is that his pacifism, and his strongly-held beliefs regarding the current conflict in Syria stem from his religion and from his cultural identity.

The Defendant (while not admitting that the termination was a result of political beliefs) takes the position that political beliefs are not protected by the Code, relying on a 1999 Court of Appeal case, Jazairi, where a York University Econ professor, who was a Muslim Arab from Iraq, was held back in promotions allegedly because of his expressed views on the Israeli/Palestinian conflict. The question was whether or not political views are captured by the Code definition of "creed". The Court concluded that it was not, and that in that case Mr. Jazairi's political beliefs were not captured by "creed", but that there may be another case in which a system of political beliefs is captured by "creed."

In the Al-Dandachi case, the Court declined to strike out the claim for a human rights remedy, because of that last disclaimer by the Court of Appeal. Jazairi stands for the proposition that creed does not always capture political belief, but not at all for the proposition that creedcannot capture political belief. So a trial on that issue is necessary.

My Thoughts
I think it's easy to imagine a scenario where political belief, or a response to a political belief, is sufficiently connected to a Code ground; the employer's argument on this point almost had to fail.

Religion and politics are tricky things. Whether or not Mr.Al-Dandachi will ultimately succeed is an open question. How strong must a connection be to violate the Code? Is it sufficient to show that your political beliefs arise from a good faith interpretation of your holy scriptures? If an employer dismissed a devout Catholic employee because of his or her attitudes toward abortion or homosexuality, it seems to me that there's a strong argument to be made that this is discriminatory on the basis of creed.

Let's simplify it a bit by looking at political belief as a hiring criterion: Suppose I say that, in order to work for me, you must be pro-choice and in favour of gay marriage rights. Will that have the effect of limiting potential job applicants on the basis of religious grounds? Absolutely. I might as well put "practising Catholics need not apply" in the ad. (Now, one can imagine employers for whom these criteria would be reasonably necessary...let's assume for the moment that we're not dealing with such an employer.)

But, if that protects only the religious beliefs connected to the Code grounds, that seems to create an odd skew. For a person who is not particularly religious to express a strongly-held view in favour of gay marriage would not often get the Code's protection, but the converse expression, being tied up in religious doctrines, is protected speech?

What do you think? Should strictly political views be excluded from the Code, regardless of connections to religious beliefs? Should they be protected only when a connection can be made between the political belief and a Code ground of the person holding the belief - so members of the LGBT community are protected when fighting for rights, and members of conservative religious groups are protected when resisting them, but nobody else is protected from employment consequences of advocating for one side or the other? What kind of connection would be necessary?

Or should we have a broader Code protection on the basis of thought, belief, opinion, and expression, to effectively integrate s.2(b) of the Charter of Rights and Freedoms into employment and service contexts?

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